Corn v. City of Cameron

• Citation: 19 Mo.App. 573
• Parties: SILAS H. CORN, Respondent, v. CITY OF CAMERON, Appellant.
• Decision Date: 07 December 1885
• Court: Court of Appeals of Kansas

19 Mo.App. 573

SILAS H. CORN, Respondent, v. CITY OF CAMERON, Appellant.

Court of Appeals of Missouri, Kansas City.

December 7, 1885

APPEAL from Clinton Circuit Court, HON. GEO. W. DUNN, Judge.

Affirmed.

The case is stated in the opinion.

WILLIAM HENRY, for the appellant.

I. The evidence offered by the plaintiff will be taken as a concession that defendant was a city of the fourth class, and had the power and it was its duty under sections 4952 and 4953, Revised Statutes, to tax the plaintiff's property and all other property " within such city made taxable by law for state purposes; " and under said sections the tax book offered in evidence by defendant, and received without objection, with the certificate of the county assessor to the same, was, at least, prima facie evidence of the correctness of the assessment, and it being conceded, as well as disclosed by said tax book that a levy was made of one per cent. of the valuation of the property, the judgment of the circuit court is clearly against the evidence.

II. The only claim of plaintiff to overcome the defendant's prima facie case is the admitted fact " that on June 16, 1882, defendant enlarged its corporate boundaries so as to take in the residence of plaintiff, and that until that time plaintiff had never resided within the territorial limits of the city of Cameron." But even this will not overcome the presumption that plaintiff's personal property as taxed by the city was in point of fact in said city and made taxable; unless the presumption that the situs of personal property is actually or constructively at the place of residence of the owner is so strong as to outweigh all other presumptions; and even that will not exempt the plaintiff in this case, for then there would be an accumulation of presumptions that the property taxed was in the city, and subject to taxation therein from and after June 16, 1882, at which time the boundaries of the city were made to extend beyond and include his residence.

III. From this, two things must follow: (1) The facts found by the assessor are either so far judicial in nature as to be conclusive, or ministerial and presumptively correct. (2) That the length of time elapsing between date of extension of city limits, and the date of finding and certifying the facts and fixing the rate of tax, can make no difference as to amount of tax, or otherwise, and is immaterial.

S. H CORN, for the respondent.

I. Taxes are charges imposed by the supreme power of the state upon persons and property within the jurisdiction of that branch of the government authorized by the law to exercise the taxing power, in consideration of the protection afforded the citizen to his life, liberty and property. Cooley on Taxation, 1, et seq, also, 14; Glasgow v Rowse, 43 Mo. 489; Sheehan v. Hospital, 50 Mo. 155; Neenan v. Smith, 50 Mo. 529.

II. The legislature cannot authorize a municipal corporation to levy taxes on persons or property not within its limits. Cooley on Taxation, 121, and cases cited; Ibid, 14; St. Charles v. Nolle, 51 Mo. 122; Wells v. Weston, 22 Mo. 384.

III. As to real property its situs within the jurisdiction of the taxing power determines its liability to taxation, and the burden is imposed upon the thing itself. As to personal property the burden is imposed upon the owner, and his domicil within the jurisdiction fixes the liability to taxation. Rev. Stat., sect. 6662; Stevens v. Mayor, 34 Mo. 323; St. Joseph v. Saville, 39 Mo. 460; St. Louis v. Ferry Co., 40 Mo. 580.

IV. The time fixed by law at which the annual burden of taxation shall attach and become a lien (as in the case of real estate), or a charge against the owner (as in the case of personal property), fixes the liability of persons and property to taxation for that year; and no municipality can levy a tax upon property or persons not within its jurisdiction at that time. Cooley on Taxation, 260, 251, and cases cited in notes 1 and 3; McLaren v. Sheble, 45 Mo. 130; Blossom v. VanCourt, 34 Mo. 390; Rev. Stat., sect. 6716; Acts 1881, 180, sect. 7.

V. The assessment fixes the liability of the property to taxation on the first day of June of each year. Acts 1881, 178. Between that day and the first of January thereafter, the assessor lists and values the property. The legislature for the state, the county court for the county, and the board of aldermen for the city make the levy, and levy such per cent. upon the valuation as will yield the amount of revenue required for the fiscal year. The clerks then extend the levy upon the " tax books." Every step in the proceeding relates back to the day the law charged the property with the burden of the tax. Acts 1881, 178; Blossom v. VanCourt, 34 Mo., supra; McLaren v. Sheble, supra. Property not within the jurisdiction of the taxing power on that day would be exempt from taxation as completely as if it was not in existence on that day.

PHILIPS P. J.

This action was instituted in a justice's court by respondent to recover from defendant the sum of $57.87, with interest, alleged to have been illegally collected by defendant from plaintiff on account of taxes imposed by defendant on plaintiff's personal property. The contention of plaintiff is that at the time the assessment was made he was not a resident of the defendant city, and his personal property was only taxable at the place of his domicil. The contention of defendant is that the property assessed had acquired an actual situs within the jurisdiction of defendant. The case was tried before the circuit court, whither it had been taken on appeal from the justice's court, without the intervention of a jury. The court found the issues for the plaintiff, and the defendant has brought the case here on appeal.

I. It is always important in the consideration of a case to keep constantly in mind its special facts, as disclosed by the record. This is essential to avoid mere discursive discussion of extraneous matters, and the premature delivery of opinions on questions not before the court.

The conspicuous facts disclosed by the agreed statement between the parties are the following: Both at the time the county assessor assessed the property of plaintiff for June, 1881, and at the time, to-wit: June, 1882, when the defendant city undertook to impose the tax, the plaintiff, the owner, was not a resident within the corporate limits of defendant. He was not so brought in until the sixteenth day of June, 1882. And four days thereafter the defendant undertook to impose a personal tax on his property, based on the certificate of an assessment made by the county assessor as of June 1, 1881, for state and county purposes. The plaintiff having paid this tax under protest, the city collector covered it into defendant's treasury. It is admitted that defendant is a city of the fourth class under the statute. This was the plaintiff's case when he rested.

I take it to be too clear almost for argument or citation of authorities that had this been all the evidence, the verdict must have been for the plaintiff. In the first place such municipalities are not permitted to collect taxes on property situate outside of their corporate limits. By the very terms of the statute (sections 4952 and 4953, Rev. Stat.) the mayor of the city is authorized to apply to the county assessor only for, and the county assessor can only certify to the city authorities, " property within such city; " and the board of aldermen are only authorized to impose taxes on " real and personal property within the limits of such city."

This, too, is the generally accepted doctrine aside from any positive statutory regulation. In Wells v. City of Weston (22 Mo. 384), it is held that the taxing of property outside of the city for the benefit of those inside of it is, in effect, taking the property of the citizen for private use, and any act of the legislature compassing such an end is violative of fundamental law. This was also followed in St. Charles v. Nolle (51 Mo. 122), where the city undertook to tax a party who lived in the country, but was employing his team in hauling goods from without into the city. In Stephens, Adm'r, v. Mayor of Boonville it was held that the city had no right to tax notes, etc., in Stephens' hands as administrator of a decedent who resided in the country at the time of his death, although Stephens actually kept the notes in town. See, also, Cooley on Tax., ch. 5, 121.

The agreed statement shows that at the time this assessment was made the plaintiff was a non-resident of the defendant city. Cooley on Taxation, page 269, states the general rule of law to be that: " A tax assessed against the person for personal estate is to be assessed to him at the place of his residence, because in contemplation of law his movable properly accompanies him wherever he goes. This is the general rule, though tangible personal property may be taxed where it is, irrespective of ownership, if the statute shall so provide; " and on page fourteen he says: " a personal tax cannot be assessed against a non-resident, neither can the property of a non-resident be taxed unless it has an actual situs within the state, so as to be under the protection of its laws."

Burroughs on Taxation, section 97, page 215, says: " Persons are generally assessed in the district, town, or ward in which they reside for their poll tax and their personal property. As a general rule a party is to be taxed at his domicil." On page 40 he says: " Generally the owner of property is taxed at the place of his residence for all his personal property, but where the property has a visible and tangible existence, not at the domicil of the owner, and is permanently situated at another place, it is liable to taxation at the place of its...